Excerpt: - motor vehicles act, 1988
[c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........final record of rights in respect of these lands under the act was published on 27-2-1966 wherein opposite parties 2 to 5 were shown to be in forcible possession of the lands. on 27-2-1968 the said opposite parties filed a revision under section 15 of the act for correcting the record and instead of showing the petitioners to be trespassers to record them as raiyats in respect of the same. this application of the opposite parties came to be registered as revn. case no. 1529 of 1968. during the pendency of this case, the tahsildar settled the disputed properties together with some other lands with the petitioners on the footing that the lands belonged to the state government and were available for settlement with landless people. the petitioners made an application to the opposite party.....

Judgment:

R.N. Misra, J.

1. This is an application for a writ of certiorari for quashing the order of the Commissioner of Land Records and Settlement (opposite party No. 1) refusing to allow the petitioners to be heard in Revision Case No. 1529 of 1968 as also the final order dated 26th of May, 1976 in the said case directing correction of the record of rights published under the Orissa Survey and Settlement Act, 1958 (Orissa Act 3 of 1959) (hereafter referred to as the 'Act').

2. The present proceeding relates to 14.98 acres of land out of plot No. 116/ 274 under Khata No. 46 in mauza Badatubi in the Marshaghai Tahsil of the district of Cuttack. The final record of rights in respect of these lands under the Act was published on 27-2-1966 wherein opposite parties 2 to 5 were shown to be in forcible possession of the lands. On 27-2-1968 the said opposite parties filed a revision under Section 15 of the Act for correcting the record and instead of showing the petitioners to be trespassers to record them as raiyats in respect of the same. This application of the opposite parties came to be registered as Revn. Case No. 1529 of 1968. During the pendency of this case, the Tahsildar settled the disputed properties together with some other lands with the petitioners on the footing that the lands belonged to the State Government and were available for settlement with landless people. The petitioners made an application to the opposite party No. 1 to be permitted to intervene in the pending revision case and to be given 9hearing. By order dated 27-3-1976, the Commissioner rejected the application saying :--

'Heard counsel on both sides regarding intervention. Since it appears that the interveners claim some right on the disputed land subsequently to final publication, it is clear that the interveners have no right to be impleaded as parties in this case which is concerned with the correctness of the finally published records. As such intervention is not allowed.....'

Thereafter on hearing the petitioners of the revision case and the State, the application was allowed and the record was corrected by directing :--

'In view of all these circumstances, I am of opinion that including plots which have been mentioned as being under the possession of petitioners 1 to 4 in Khata No. 11, a total area of 33 acres should be recorded in the names of petitioners 1 to 4. The name of petitioner No. 5 cannot be recorded as in his case there is no valid lease. Since 18.02 acres have been recorded in the names of petitioners 1 to 4, an area of 14.98 acres should be demarcated out of plot No. 116/274 under Khata No. 46 and this should be recorded in the names of petitioners 1 to 4 with an appropriate khata number. Demarcation of this 14.98 acres should be done by concerned Tahsildar and appropriate boundaries fixed. The status of the petitioners should be the same as is presently re-corded in Khata No. 11.'

Petitioners challenge the order refusing permission to intervene as also the final order directing correction of the record.

3. The opposite parties 2 to 5 have filed a counter affidavit supporting the action of the Commissioner.

4. Section 15 of the Act provides that no direction for correction of the records shall be made until reasonable opportunity has been given to the parties concerned to appear and be heard in the matter. As already noticed, the record of rights were finally published in 1966. Petitioners claimed a right in the disputed property on the basis of settlements made with them in 1975. In fact, their claim for intervention was based on that feature only. The commissioner under the impression that the correctness of the record as and when published has to be examined on the basis of contemporaneous materials offacts then in existence rejected the request of the petitioners for being heard as their interest in the property was only with effect from 1975. We are inclined to agree with Mr. Ram for the petitioners that the view taken by the Commissioner is not appropriate. The Proviso to Section 15 runs thus :--

'Provided that no such direction shall be made until reasonable opportunity has been given to the parties concerned to appear and be heard in the matter.'

'Parties concerned', would not necessarily mean those who had been contesting the particulars in the record of rights before the settlement authorities. Any person who would be affected by the direction of the Commissioner would be entitled to a hearing. In the instant case, the settlement of the lands with the petitioners was on the footing that the same belonged to the State and there was no tenant in occupation thereof. If the record in support of that position was altered, the settlement with the petitioners would become inoperative. In this view of the matter, petitioners should have been given a hearing, and as is rightly contended by Mr, Ram on their behalf, if petitioners had been heard, they would have been able to persuade the Commissioner not to interfere in the matter. Even though petitioners had no right in the property by 1966, when the record was published, by subsequent events and on the footing of the record as published, they had come to acquire certain rights.

5. Ordinarily we would have vacated the order of the Commissioner and remitted the matter for a fresh disposal. We, however, decline to do so, inasmuch as the facts are somewhat telling and we are satisfied that in the facts of the case it would not be in the interests of justice to vacate the order. It has been found by the Commissioner that opposite parties have been in long possession. An attempt was made to set aside the leases granted to the opposite parties by the ex-intermediary and on a finding that the ex-intermediary had obtained permission of the Collector under Orissa Act 1 of 1948 before granting the leases, the said proceedings were dropped. The Commissioner has recorded a finding that ever since then the opposite parties have been in possession. On their own showing, petitioners came upon the lands by virtue of settlement made in 1975. In view of the fact thatthe opposite parties had been in long possession on the basis of leases granted in their favour by the ex-intermediary, prima facie, the petitioners should not be entitled to the lands. We, however, do not propose to enter into an examination of the matter and record positive findings. Our doing so would certainly prejudice the petitioners in case they intend to institute a suit for declaration of their title. We are, therefore, not inclined to interfere in the matter as we hold that it is not a fit case where our extraordinary jurisdiction should be permitted to be invoked. We accordingly dismiss the writ application, but without any direction for costs.